This Criminal Original petition has been filed to set aside the order dated 26.05.2017 passed in C.M.P.No.1829 of 2017 in C.C.No.366 of 2011 on the file of the learned Magistrate, Padmanabapuram, Kanyakumari District.
2.Heard the learned counsel appearing for the petitioner and the learned counsel appearing for the respondent.
3.The petitioner before this Court is the complainant, who has filed the complaint under Section 138 of Negotiable Instrument Act. He filed the petition to recall DW-3 for cross examination under
Section 311 of Cr.P.C.
4.It is a fact that the petitioner did not avail the opportunity to cross examine the witnesses and the cross examination of the witnesses was also closed on 18.05.2017. It is on the date, when the Court closed the defendant side witnesses, the petitioner has filed the petition under
Section 311 of Cr.P.C., to recall DW-3 for cross examination. The said petition was dismissed on the ground that it is the duty of the complainant to be ready for cross examination, on the date of examining the witnesses. It is further stated in the order that so many opportunities were given to the complainant and that the complainant failed to use it. The finding that the petitioner was given so many opportunities is in dispute and from the records, this Court is not in a position to accept the reasoning. It is of course, the duty of the complainant to cross examine the witnesses, when the witnesses are available. However, due to extra ordinary circumstances, if an application is filed for recalling the witnesses with the delay or after failing to avail the opportunity, still this Court may grant permission to recall if serious prejudice will be caused. The question is about the bona fide in seeking further cross examination. The legal position is well settled that opportunity should be given to both the accused and the complainant to the maximum possible, so as to render justice.
5.In that view of the matter, this petition is allowed and the order passed by the learned Magistrate, Padmanabapuram, Kanyakumari District, in C.M.P.No.1829 of 2017 in C.C.No.366 of 2011 is set aside. The petitioner is directed to cross examine the DW-3 on the date, when the witness / DW-3 is made available, without asking any further opportunity.
6.The learned counsel for the contesting respondent, submitted that he will be in a position to produce the witness / DW-3 on a particular date and that this Court may fix a date for cross examining the witness / DW-3.
7.In the said circumstances, this Court direct the learned Counsel for the respondent to produce the witness / DW-3 on 21.09.2017 and on the said date, the cross examination shall be done.
8.Accordingly, the Criminal Original petition is allowed. Consequently, the connected miscellaneous petition is closed.
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